Real estate developers have good reason to feel cannibalized when they
attempt to develop something today. Building permits for their projects
are often exceedingly difficult to secure, requiring thousands of dollars
in architect's and attorney's fees, and months (if not years) of submitting
plans to boards and commissions, sometimes a repeat number of times. Many
projects end up abandoned because the developers simply run out of money
for the holding costs involved, not to mention spiritual energy to fight
the psychological battles. Even if the developer is lucky enough to eventually
get the project built, the costs to sell or lease the space end up far
higher than they should be due to all of the red tape involved. This in
turn means needlessly higher rents and prices for homes, apartments, and
commercial space. (For the sordid details of the land development approval
process, read Dr. Gary Hull's article "The Collapse of Building"
in The Intellectual Activist, Summer 1989.) The cause of this mess is,
in a word, zoning.

Zoning creates the problem by subjecting development to the arbitrary
whim of government, which can virtually make or break a project on any
basis the bureaucrats wish. Zoning operates as follows: a local government,
either a city or county, breaks its jurisdiction up into zoning districts.
The government then drafts an ordinance stating which types of land uses
are allowed in each district. For example, a city may have an ordinance
which has several zoning districts, some of which allow only residential
uses, a few more allowing only commercial uses (i.e., stores, offices,
etc.), a couple which allow industrial uses, etc. But zoning involves
more than merely the specific use to which the property may be put; considerations
such as the size, height, and architectural style of the development,
setback distances from the lot lines, the amount of ground it covers,
how much parking is required, and a myriad of other aspects of a project's
design are also among the arbitrary rules found in zoning ordinances.

When a developer proposes a project and applies for a building permit,
before he can build he must first obtain approval from the local government
in whose jurisdiction the project is planned, which comes only if the
project conforms to the local zoning ordinance. If it does not, then he
must change the project to conform or receive the government's permission
to deviate from the ordinance; if he can not do either of these, he must
then try to persuade the public, in an open hearing, to allow him to change
the ordinance. These moves are subject to political pressure from constituents
(such as competing real estate developers) of the elected officials from
whom approval must be sought; if local politics are against him, the developer
may have to give up on the project altogether.

Zoning is an evil because it is a violation of the property owner's right
to develop and use his property for purposes of his choosing. It is a
gun pointed at the head of anyone who wants to develop his land in any
way, before such a person has used any force himself against anyone else-i.e.,
before he has used his property in any way, constructed anything, or harmed
anyone through his use; and, it is being wielded by an entity which has
no ownership interest in the property and thus no right to set the terms
of its use. If someone wants to develop his property, thanks to zoning
he no longer has any real right to do so. With zoning a developer may
only develop by the government's permission, which, though it may not
be de jure withheld arbitrarily under the law, may still be de facto withheld
for so long through stonewalling and political maneuvering that the developer
may run out of money merely trying to get the permit.

The proponents of zoning claim that such initiation of force is necessary
against developers to prevent the occurrence of nuisances. A nuisance'
is defined as the effect from an activity on others which unreasonably
interferes with another's lawful use of property, or causes undue inconvenience,
hardship, or discomfort to another person. Examples aren't hard to visualize.
For example, a factory which emits harmful fumes that cause breathing
problems for nearby residents is a nuisance, as is a restaurant which
does nothing to prevent bad odors emanating from its dumpster to the properties
nearby. A college fraternity house near a residential neighborhood which
plays loud music late into the evenings might also be considered a nuisance,
if it affects the ability of neighboring residents to sleep. But nuisances
may work the other way as well: for example, a house in a noisy industrial
district may be a nuisance there-if the residents' desires to sleep affect
the ability of the factory owners to operate their businesses.

Because one has a right to use his property, and because nuisances unreasonably
interfere with one's use of property, it follows that nuisances are a
violation property rights and, as such, must be addressed objectively
by a proper legal system. While the need to do this hasn't escaped western
intellectuals, unfortunately the means of doing this for the most part
has.

What has thrown thinkers for centuries regarding nuisances is that they
are different from other forms of force because there is nothing inherently
unlawful about the acts which constitute the nuisance; all that is unlawful
is their effect on other property owners. In contrast, almost all other
forms of force have some act associated with them which, because the act
itself represents a forcing of the arbitrary on another person, is clearly
unlawful. For example, consider the physical attacks or threats associated
with assault, battery, or manslaughter. Then consider whether it is unlawful
merely to use one's house to sleep, or to play loud music. Both activities,
by themselves, would be legally fine, so long as they do not affect anyone
else's ability to use property.

Because the acts which contribute to nuisances are not in themselves
unlawful the way acts constituting other forms of force are, there is
confusion about the principles regarding whom to hold accountable for
the creation of a nuisance. The proponents of zoning claim that there
are no objective principles for doing so and that, without the initiation
of force, there would be no means in the event of a nuisance to determine
which of the two contributing uses would have the right to continue and
which would have to yield. Nuisances would therefore proliferate everywhere,
with the government powerless to enjoin them.

The zoning proponents, however, are wrong. There is an objective means
by which the rights of two property owners can be determined in the event
of a nuisance, without the initiation of physical force against anyone:
by means of a doctrine called Coming to the Nuisance.

Coming to the Nuisance' means exactly what it sounds like: if a
property owner is using his property so as to cause a nuisance to another
property owner, then the property owner who was the earlier to start his
particular use is the one who has the right to continue his use. The other
property owner, who started his use subsequently on his own property,
has lower priority and thus must either yield or quit complaining, since
he came to the nuisance and therefore could have stayed away. For example:
if a farmer has on his property a feedlot for his animals that is being
properly operated [1] and yet which still causes bad odors, a developer
who later constructs single-family residences on a nearby parcel can't
complain about the feedlot's odor, effluent, or other negative attributes
(nor can the purchasers of the residences); if he does, he won't prevail
in a nuisance action against the farmer because of Coming to the Nuisance-i.e.,
because the feedlot was there first.

It is important to emphasize that the Coming to the Nuisance Doctrine
does not give a property owner priority to engage in any and all uses
of his property; it only gives him priority to engage in particular uses
of property-namely, only those uses which one starts prior to the uses
made by other property owners. For example, if I purchase a piece of land
and use it solely as a residence, I have a right to continue using it
as a residence as against the rights of all newcomers. Let's assume that,
subsequent to my purchase and commencement of use as a residence, someone
moves in next door to me on a vacant piece of land and uses it as his
residence. Then, subsequent to that, I open a hog farm on my land which
causes a nuisance to my neighbor. I do have the right to use my property
as a residence as against the rights of my neighbor, since my residence
was there first, before his residence was. However, I do not have the
right to use my property as a hog farm as against the rights of my neighbor
if doing so causes him a nuisance, since his residence was there before
my hog farm was. When I opened the hog farm, I started a new use-and thus
my hog farm has lower priority than the uses of other property owners
which commenced before my hog farm. (Other factors, such as when I bought
my property, etc., are for the most part irrelevant. It is when I started
my particular use which matters.)

Coming to the Nuisance' is a corollary of the right to keep and
use property. One must have the ability, without permission from others,
to use property indefinitely (unless, of course, one voluntarily agrees
to use it only for a specific time period, such as with a lease). If one
does not have such an ability  meaning, in essence, that someone
can come along at any time and arbitrarily demand that one no longer may
use his property  then all use of property in effect ends up being
by permission of those who have the power to stop its use, and the right
to property in effect vaporizes. For example, if the government decides
to stop a particular owner's use of his property simply because a majority
of people in the area find it offensive for one reason or another, then
ultimately everyone's use of property is no longer by right but rather
by permission.

Because the right to property means the right to use it indefinitely,
it follows that, once a property owner has started using his property
in a particular fashion, he has the right to stop others from interfering
with that particular use. This is the rationale behind the Coming to the
Nuisance doctrine's requirement that, when uses of two properties conflict
with each other, the use which has priority is the one started first,
and the owner has the right to stop others from interfering with this
prior use (the first in time, first in right' rule).

Since the right to property necessarily implies the right to use it indefinitely,
and since the right to use property indefinitely implies the first in
time, first in right rule, it follows that respecting property rights
ultimately means respecting the Coming to the Nuisance doctrine too. The
two are inseparable. Also, because the only objective means by which men
can properly deal with one another is for them to respect each other's
rights, then in the appropriate context the Coming to the Nuisance doctrine
is the only objective means for men to deal with one another as well.
To summarize: the Coming to the Nuisance Doctrine is the only objective
means of determining who has the right to continue using his property
in the event of a nuisance. If zoning is to be replaced, therefore, it
must be replaced with the Coming to the Nuisance doctrine. And, since
it is the only objective means of determining who has the right to continue
using property in the event of a nuisance, the Coming to the Nuisance
doctrine must be regarded as an absolute in all nuisance cases where it
is at issue, determining the rights of the parties without being watered
down by less important doctrines.

Unfortunately, this is not the present state of American law. Although
it is still used in nuisance cases, Coming to the Nuisance is not regarded
as an absolute, but rather as merely "one factor among many"
by the courts. For example, courts today very often determine the rights
of property owners in nuisance cases not solely by who started his use
first, but rather by factors such as the "trend of development in
an area"-meaning that, if there is a farm or factory in an area that
previously was agricultural or industrial but which is becoming residential,
the government will force the farmer or factory owner to shut down. [2]
This opens the door to unjust decisions in nuisance cases, and provides
an excuse for government intrusions on property rights such as zoning.

Replacing zoning with the Coming to the Nuisance doctrine as an absolute
would mean the end of the government's initiation of physical force in
the land development process due to zoning. This is because the government
would not be able to tell anyone how to use his land prior to the creation
of a nuisance. Once a nuisance occurs, however, the government may use
force to stop it, as the result of a lawsuit. The government is justified
in doing this because it is the nuisance (rather than the government's
remedial actions) which, since it is a violation of the right to use property,
constitutes the initiation of force-and the government's remedial measures
are simply force used in retaliation.

Ending the initiation of force brought about by zoning will greatly help
to restore objectivity to the land development process. This is because
decisions regarding land use will no longer be in the hands of the government
but rather will be handled by the owners of the property to be developed.
Instead of being forced to design projects to conform to the whims of
bureaucrats, developers will be free to design their projects to conform
to reality-in this context, to the rights of other property owners who
started using their properties previously, and who might be adversely
affected by the developer's proposed project. This would necessarily involve
figuring out which property owners might be affected by a proposed project
and what uses these owners are already making of their properties, so
that the developer can design his project to be compatible with these
uses. (Unfortunately there isn't space to go into the mechanics of this
here; it will have to be the subject of future work.)

Finally, replacing zoning with the Coming to the Nuisance Doctrine should
bring the prices of homes and building space down dramatically because
the design criteria for development projects will be objective rather
than arbitrary, and development costs will thus become more predictable
and manageable.

In conclusion, because property rights are a necessity if men are to
live together, it follows that they must be respected in every area of
one's life, including land development. Humans must develop land; we can
not live, as the environmentalists insist we do, in the world as
it is' without creating the buildings, roads, and utility systems we need
in order to live. But these must be built with total respect for everyone's
rights. This means ending zoning-and its only antidote is the Coming to
the Nuisance doctrine.

[1] If a nuisance results solely because a use is being
improperly operated, then there is no Coming to the Nuisance issue and
the doctrine doesn't apply. For example: if the feedlot caused odors only
because of improper operation, and proper operation would end the odors
and thus the nuisance, a court would simply order the owner of the feedlot
to take measures to end the odors, and would not apply Coming to the Nuisance.